News & analysis of the United States Court of Appeals for the Third Circuit, by Matthew Stiegler

Oral argument done right in Weev

Yesterday’s Weev ruling reminded me of the fine oral argument given by his pro bono lawyer, Volokh Conspiracist and former Garth clerk Orin Kerr. Audio file here. It’s worth a listen, because Kerr gets a couple things right that a lot of CA3 advocates get wrong.

Kerr’s not treating questions like a nuisance detour from what he wants to be saying. At 2:11 and 3:23 and throughout, he shuts up to let the panel ask another question. So many lawyers try to head off questions, raising their voice and talking fast at the end of their answers to bull their way back into their prepared monologue. When we do that the judges aren’t even hearing our grand orations, they’re thinking about their grand questions and listening for a pause.

Under-prepared lawyers are afraid of questions. Our #1 goal in argument is Don’t Look Stupid, and we figure we’re on safer ground with the speech we prepared vs. the response we’re winging. Kerr’s not winging his responses, so he has the confidence to let the judges take him wherever they want to go all the way til 9:23. That’s rare.

Kerr’s preparation also shows in his direct, clear responses. Direct, like his first answer at 1:45 when the first words out of his mouth state the answer to the judge’s question, and then he gives his explanation. Lesser advocates don’t lead with direct responses, and it drives judges crazy. But getting there takes work: Chief Justice Roberts, who knows a thing or two about oral advocacy, says you need prepared answers to a thousand questions. Lots of us walk in about 990 short.